[1984] OLRB Rep. February 284
1036-83-R Labourers' International Union of North America, Local 183, Applicant, v. Massi Construction Co. Ltd., Respondent, v. Group of Employees, Objectors
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: L. Steinberg, F Pallazollo and R. Quinn for the applicant; Lou Massi for the respondent; John Bucco for the group of employees.
DECISION OF THE BOARD; February 27, 1984
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.
The respondent filed a list of employees in the proposed bargaining unit containing eight names. The applicant acknowledges that the names of the following five employees were properly included on the list, namely, John Bucco, Rivaldo DiCerce, Nick Dilorio, Antonio Massi and Dino Plati. The applicant has, however, challenged the inclusion on the list of the names of Mike Massi, Jeff Johnson and Tony Tomini.
The applicant challenged the inclusion of the name of Mike Massi on the list of employees on two separate grounds. One was that he was not doing bargaining unit work. The evidence does not support this contention. The second ground relates to the claim that Mr. Massi exercises managerial functions within the meaning of section l(3)(b) of the Act. At times Mr. Massi works as a working foreman and at other times he works as a labourer. He plays no direct role in the day-to-day management of the company, these functions being handled by Mr. Lou Massi, the respondent's president. Mike Massi is not, however, simply a regular employee of the respondent. He is the brother of Lou Massi. Further, some six and a half years ago Mike Massi invested $12,000.00 in the company, and in return received thirty-three per cent of the company's shares. Mike Massi is the respondent's vice-president. Unlike other employees who are paid on an hourly basis, Mike Massi receives a salary of $400.00 per week. He also receives dividends from the company's profit. Although Lou Massi handles the day-to-day management of the company, he meets with Mike to discuss the company's financial situation, including the respondent's labour costs and employee wages. At the end of the firm's financial year, Mike and Lou Massi discuss how much of the profit is to be retained in the company and how much is to be paid out to the two of them as dividends. The final decision in these matters is made by Lou Massi, presumably because he is the firm's president and major shareholder.
Collective bargaining, by its very nature, requires an arms length relationship between the "two sides" whose interests and objectives are often divergent. If managerial employees were to be included in a bargaining unit, they might find themselves faced with a conflict of interest between their responsibilities as members of management and their responsibilities as union members. Section 1(3)(b) ensures that neither the union nor the employer need be concerned about such divided loyalties. Mr. Mike Massi is a one-third shareholder and vice-president of the respondent. He is involved in decisions relating to the company's overall operations, including matters that impact on employees. We are satisfied that if Mr. Massi were to be included in the bargaining unit, he would likely be placed in a conflict of interrest situation. Accordingly, we are of the opinion that Mr. Massi is excluded from the provisions of the Act pursuant to section l(3)(b). See, Ed Walkers Electric Ltd. [1970] OLRB Rep. March 1434. It follows that Mike Massi was not an employee in the bargaining unit on the date of the making of the application and his name should not have been included on the list of bargaining unit employees.
[Editor's Note: Only that portion of the decision dealing with the employee status of Mike Massi has been reproduced.]